Page 19 - Lawtext Environmental Liabilty Journal Example

86 The emergence of European Union environmental criminal law – Part I : Hedemann-Robinson [2008] 3 Env. Liability
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come into force its impact would be liable to be rather offenders; and provisions addressing domestic jurisdictional
uncertain and fractured. Specifically, a number of its and institutional issues. Each of these groups of provisions
provisions are poorly defined or entirely open to will be examined briefly in turn.
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interpretation. A number of key provisions are optional An integral part of CPECL is the aim to agree upon a
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rather than mandatory. Moreover, some provisions are minimum common core of environmental offences
open to be subject to unilateral reservations made by applicable within the jurisdictions of the Contracting
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Contracting Parties, and a party is entitled to denounce Parties. Articles 2–4 of the Convention provide for common
the Convention subsequent to ratification. In common definitions for a series of environmental offences. Articles
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with most international treaties, there are no specific legal 2–3 identify the most serious of offences causing or very
sanctions against Contracting Parties which fail to likely to cause damage to the environment and/or human
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implement CPECL obligations and no rights under the health, and require parties to outlaw them under criminal
Convention for individuals to be able to rely on its terms law. Whereas Article 2 addresses crimes committed
in order to enforce it before national authorities and courts. intentionally, Article 3 focuses on negligence. The key
In spite of its poor prospects of becoming legally binding provision is Article 2 which stipulates:
and its numerous legal deficiencies, CPECL represents an
important milestone in terms of the development of a Article 2 – Intentional offences
substantial European dimension to law and policy on 1. Each Party shall adopt such appropriate measures
environmental crime. A number of the Convention’s as may be necessary to establish as criminal offences
provisions have been in practice very influential, serving as under its domestic law:
benchmarks during the course of political negotiations over a) the discharge, emission or introduction of a
a general EU legislative text on environmental crime. quantity of substances or ionising radiation into air,
The core structure of CPECL is founded upon two main soil or water which:
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sections, Sections II and III, which respectively seek to i) causes death or serious injury to any person, or
address matters pertaining to the prosecution of domestic ii) creates a significant risk of causing death or serious
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as well as cross-border environmental crime. Section II injury to any person;
contains a range of provisions obliging Contracting Parties b) the unlawful discharge, emission or introduction
to take a series of measures at national level. These may be of a quantity of substances or ionising radiation into
divided roughly into different groups, namely provisions air, soil or water which causes or is likely to cause
concerning: the definition of certain environmental their lasting deterioration or death or serious injury
offences; corporate liability; sanctions to be imposed on to any person or substantial damage to protected
monuments, other protected objects, property,
animals or plants;
c) the unlawful disposal, treatment, storage,
128 For instance, art 6 CPECL defers to Contracting Parties as to
what criminal sanctions to apply in respect of any of the transport, export or import of hazardous waste
environmental offences defined in the convention. which causes or is likely to cause death or serious
129 For instance, art 3(2) CPECL allows the Contracting Parties
the option of restricting criminalising negligence to covering gross injury to any person or substantial damage to the
negligence. Other examples include arts 7, 8 and 9 CPECL, which quality of air, soil, water, animals or plants;
provide parties with the option of deciding whether to provide for d) the unlawful operation of a plant in which a
confiscation, reinstatement and criminal corporate liability
respectively. dangerous activity is carried out and which causes
130 Article 17 CPECL. or is likely to cause death or serious injury to any
131 Article 20 CPECL.
132 Article 19 CPECL makes provision for the settlement of person or substantial damage to the quality of air,
disputes over the interpretation or application of the convention. soil, water, animals or plants;
However, this may be performed by informal confidential e) the unlawful manufacture, treatment, storage,
negotiation between disputants and is not required to be carried
out by an independent third party. Moreover, CPECL does not use, transport, export or import of nuclear
provide for the monitoring of compliance with the Convention by materials or other hazardous radioactive substances
an independent body, in contrast with the position applicable to the
EC Treaty in respect of which the European Commission is vested which causes or is likely to cause death or serious
with specific supervisory responsibilities and powers (see arts 211, injury to any person or substantial damage to the
226 and 228 EC). quality of air, soil, water, animals or plants, when
133 Articles 2–11 CPECL.
134 Article 12 CPECL. committed intentionally.
135 Section I (art 1) and Section IV (arts 13) of CPECL deal with 2. Each Party shall adopt such appropriate measures
definitions and general obligations pertaining to the legal effects of
the Convention respectively. as may be necessary to establish as criminal offences

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